OFFICERS' ACTIONS ATTACKED IN SAN JOSE MARIJUANA TRIAL

Defense says charges against ex-cannabis club chief should be thrown out
because of improper search

By Raoul V. Mowatt SAN JOSE MERCURY NEWS

SAN JOSE -- Attorneys for medicinal-marijuana advocate Peter Baez raised
pointed questions of witnesses in an attempt to scuttle the criminal case
against the former head of a San Jose-based marijuana dispensary.

During Wednesday's testimony, San Jose police officers fended off questions
intended to portray their March 23 raid of the Santa Clara County Medical
Cannabis Center as sloppy yet overzealous.

If defense attorneys can convince Superior Court Judge Diane Northway that
the search was improper, they may be able to gut much of the case against
their client.

One of the officers conceded that his sworn affidavit contained a
misstatement. Under questioning from both defense attorney Gerald Uelmen
and prosecutor Rob Baker, Sgt. Tim Kuchac testified that it was simply a
mistake.

But Uelmen seized on that testimony to criticize the officer, saying it was
symptomatic of other problems in the search.

"I was blown away," Uelmen said. "I have very few instances in my life as a
lawyer where I had a police officer admit on the stand to perjury."

Baker, however, said the overall testimony showed the officers balanced
concern for the center's patients with their need to investigate possible
wrongdoing.

"I think (the day's testimony) shows the officers were acting reasonably,"
Baker said. "I think they did what was best for the center and the patients
who had recommendations."

For about a year, Baez, 35, of Gilroy ran the now-defunct cannabis center.
At its busiest, it sold marijuana to about 265 people.

He and his colleagues had a cordial relationship with police until an
investigation into one man's defense against illegal marijuana use raised
questions about whether Baez was obtaining doctors' recommendations before
selling the drug.

The investigation that followed has led to seven felony charges against
Baez: grand theft, maintaining a drug house and five counts of illegal
marijuana sales.

On Wednesday, Kuchac was asked about his affidavit, which came after the
original search warrant had been served. His statement was used to obtain a
warrant to seize a center computer. He testified that no important evidence
was taken from the machine.

Kuchac stated in his affidavit that he was part of the team that served the
first warrant and noticed a computer that could have contained business
records and other key evidence. In fact, he testified Wednesday, that was
not true. He had never been to the center before signing the affidavit, he
said.

Under questioning from Baker, Kuchac testified that it was routine for the
Santa Clara County District Attorney's Office to prepare affidavits for
officers and that he inadvertently missed the discrepancy.

But Uelmen put a more ominous spin on Kuchac's statement, saying that
Kuchac needed to say he had been present to convince a judge to expand the
original search.

Attorneys also finished questioning Sgt. Scott Savage, the lead
investigator in the case. Savage testified that he had no vendetta against
Baez, one of the defense's main contentions.

Uelmen, a Santa Clara University law professor, asked Savage again about
the timing of the raid. He and co-counsel Tom Nolan have contended that
Savage waited to raid the club until then-Chief Lou Cobarruviaz had left
office, saying Cobarruviaz looked favorably on Baez and medicinal marijuana.

But Savage denied this was the case, testifying that he doesn't know if he
knew when Cobarruviaz was going to step down and that there was no formal
department policy on medicinal marijuana.

The hearing is scheduled to resume Monday.

Checked-by: Richard Lake